Social partners to negotiate implementation of EU information and consultation Directive

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In summer 2004, the Polish government sought the views of the social partners on a draft proposal for legislation to implement the 2002 EU Directive on information and consultation. Both employers' organisations and trade unions were critical of the government's plans and in October they decided to launch bipartite talks on the subject, without government participation. The government has accepted this arrangement, which is unprecedented in Poland. If the social partners find common ground, their joint proposal will be presented to the government, which will probably accept it.

With a view to implementing the 2002 EU Directive (2002/14/EC) establishing a general framework for informing and consulting employees (EU0204207F), in summer 2004 the Polish government submitted to the social partners on the Tripartite Commission for Social and Economic Affairs (Komisja Trójstronna do Spraw Społeczno-Gospodarczych) (PL0210106F) a draft legislative Act regarding employee representatives and 'employee councils'. The proposal involved the election by employees (from candidates proposed by trade unions, if present) of employee councils at establishments with over 100 workers, or employee representatives at establishments with 20-100 workers, irrespective of whether trade unions are already present at the workplace (PL0409102F).

In response to the draft, the Independent and Self-Governing Trade Union Solidarity (Niezależny Samorządny Związek Zawodowy Solidarność, NSZZ Solidarność) and the All-Poland Alliance of Trade Unions (Ogólnopolskie Porozumienie Związków Zawodowych, OPZZ) (PL0208105F) argued that in enterprises where trade unions are already present, information and consultation rights should go to them, as is the case in the Czech Republic. The government proposal received support from only one of the three central trade union organisations - the Trade Union Forum (Forum Związków Zawodowych, FZZ). For their part, employers' organisations proposed that the new form of employee representation should be introduced only in enterprises with at least 50 employees. In addition, they were unfavourable to the wide spectrum of matters on which information provision would be required - fearing information leakage and a deterioration of enterprises' competitiveness - and critical of the proposal to introduce legal sanctions against employers that do not abide by the information requirements.

The resistance demonstrated by trade unions and employers caused the government to hesitate. According to the Gazeta Wyborcza newspaper on 6 October 2004: 'the backroom talk is that Economy and Labour Minister Jerzy Hausner is out of steam and does not wish to get into new conflicts anymore. What is more, the ministry has commissioned an expert opinion on the consequences of not complying with the EU Directive. If they prove not too severe, then it is possible that the project will be put on the back burner. And who knows how many years it will stay there… Indeed, it is unlikely that the new liberal government will return to this issue.'

However, trade unions and employers' organisations have stated that it is not their intention to shift the implementation of the Directive into the distant future. Two taskforce teams within the Tripartite Commission (on labour law and on social dialogue) have been discussing the implementation of the EU Directive and the government proposal. A compromise solution has been suggested by an expert representing employers, which was well received by some trade unionists. It assumes that in enterprises where trade unions exist, they would come to an agreement with the employer as to the form of information and consultation. Only when there is no such agreement would the entire personnel elect an employee council or employee representative (as provided in the current government proposal).

It was decided by employers' organisations and unions at a meeting of the two taskforce teams on 6 October 2004 to begin autonomous talks without government participation on the implementation of the Directive, and to present the proposal worked out in this manner to the government. It was agreed that the talks would not concern the government proposal but the Directive itself. The government has consented to this procedure for elaborating the draft law. This is an important development because never before have the Polish social partners been allowed to draw up draft legislation to transpose an EU Directive. To date, they have been able only to discuss projects already prepared by the government.

According to some commentators, of the two alternatives, the one promoted by the Labour Ministry would provide an opportunity for reinforcing the Polish trade union movement, since candidates proposed by trade unions would be elected as employee representatives or employee council members by all employees working in the given enterprise. This would allow for a verification of the support for the various trade unions and elevate the position of those unions that obtain more support in elections of employee councils/representatives across the country (as occurs in Spain). The other method, following the Czech model, would maintain the current trade union pluralism in the workplace. It seems likely that the social partners' autonomous talks in the Tripartite Commission may lead to the latter concept being adopted. However, irrespective of the outcome, the implementation of the EU information and consultation Directive will be important because it creates a form of representation of employee interests in all Polish enterprises with 20 or more employees (PL0208106F).